Wednesday, September 7, 2016

I HAVE SAID THAT BORROWERS ARE WINNING MORTGAGE FRAUD CASES TODAY BY CHALLENGING STANDING, BUT THIS OLDER ARTICLE SHOWS US THAT CHALLENGING STANDING HAS BEEN WINNING FOR SEVERAL YEARS


LOOK AT THE DATES ON THESE MORTGAGE FRAUD CASES INVOLVING FORECLOSING PARTIES WHICH COULD NOT DEMONSTRATE STANDING.

Perfection is not attainable, but if we chase perfection we can catch excellence. 

-Vince Lombardi

by Danny Hammond

The Foreclosing Parties that lose to the Borrowers in Foreclosure Fraud Courts have one big problem. The basis on which they lose was simply the finding that the alleged Trust or Plaintiff did not own the debt, promissory note or mortgage. This is the same as the San Francisco study that found that at least 65% of all foreclosures were initiated by “strangers to the transaction.”

The issue confronting lawyers is that at trial, the Judges are assuming and presuming things that are not true. And the facts are counter-intuitive, leaving the lawyer with no answer to the question “Well if the loan broker didn't didn’t fund the loan, who did?” and the corollary question “Well if the foreclosing party doesn’t own the loan, who does?”

Such questions shift the burden of proof to the one party who knows nothing — the homeowner. It is much more difficult to fight with opposing counsel and the Judge at trial than a major aggressive push in discovery. Judges frequently start out leaning towards the bank, but once it is pointed out that discovery is a much broader process than trial, many lawyers are punching through the fog. Arguments about presumptions during discovery should be turned on their head — that all such presumptions are rebuttable.

And one last point — for nearly ten years I have been cautioning lawyers and homeowners not to admit things they know nothing about. None of you actually have the facts and none of you has the requisite knowledge (except in rare cases) about the money trail. People complain about “bad” decisions and accuse the court of bias and this is true. In fact, in most cases where the borrower loses it is because facts that are untrue or unproven are accepted as true by the court.



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